Carpenter v. Brown

The first clause of the will of Francis Carpenter, if it stood alone, would vest in the complainant the whole of his estate, both real and personal, in absolute property; but the power to sell, which follows, and which is inconsistent with such a disposition, and the provision that his daughter, if she attained the age of eighteen years, should have one half of his property, qualify the first clause, and leave for the complainant only an undivided half of the testator’s estate, with a contingent right to the other half, if the daughter should die before arriving at the age of eighteen years. The words “ all my property, both real and personal,” especially accompanied as they are with the charge of debts and power of sale, are quite sufficient to carry to the complainant a fee in the real property of the testator; indicating, as they do, in the connection in which they stand, all his interest in what he should be possessed of at the time of his decease; Doe d. Shell v. Patterson, 16 East, 221; Nicholls v. Butcher, 18 Ves. 194 ; Patton v. Randall, *386 1 Jac. & Walk. 189; and the words that follow only control their operation so far as to let the daughter into an undivided half of the estate, in the event she should attain the age of eighteen years. There can be no doubt that the testator intended that his daughter, if she survived the age of eighteen years, should have one half of his estate in absolute property; and precisely the same language is used to indicate the extent of the wife’s interest in the other half, and, contingently, in the whole of his estate.

The complainant’s right, under the will of her husband, to an undivided half of his real property in fee, would not, however, entitle her, before partition, to convey the western portion of the farm in question to the defendant. But we are of opinion that the express power given to her “to sell any part of the property that she may think right and proper to do,” not only for the payment of debts, but to support and educate her daughter, confers upon her, under the facts agreed, this right; and, coupled with her fee in the other half, enables her, subject to the condition in favor of the Thurstons which the contract contemplates, to give to the defendant the title in fee-simple for which he contracted.

A decree must therefore be entered compelling the defendant specifically to perform his contract of purchase with the complainant, and the case, unless the parties otherwise agree, be referred to a master to settle the conveyance and superintend the due execution of the contract on both sides.